IN THE CASE OF:	  

		BOARD DATE:	  16 September 2008

		DOCKET NUMBER:  AR20080008959 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, upgrade of his discharge to an honorable discharge. 

2.  The applicant states, in effect, at the time of his discharge he was a young Soldier and did not understand the severity of the discharge he would receive.

     a.  The applicant states that his mother died when he was 8 years old and he was living with his grandparents in 1968.  He also states that there were 9 people living in 1 house and his grandparents received welfare.

     b.  The applicant states that he spoke with a recruiter and was told he could send his grandmother an allotment check of $200.00 a month if he joined the Army, which seemed a lot better than he could do working around the house. The applicant adds that he quit school and enlisted in the Army in August 1968.

     c. The applicant states that his First Sergeant told him that he did not need to be in the Army and advised him to apply for a hardship discharge.  He adds that his grandfather died when he was at home in December 1968 before going to Germany.  The applicant also states that he did not hear anything about his hardship discharge and proceeded on assignment to Germany in January 1969.

     d.  The applicant states that, while in Germany, he took classes and received his General Equivalency Diploma (GED).  Then, in July 1969, he was informed that his grandmother had died and he returned to the United States to attend her funeral.  The applicant states, while at home he learned that one of his cousins had been spending all of the money he had been sending his grandmother.  He also states that he was devastated and blamed himself for not being at home to help his grandmother.  He adds that he became depressed and did not return to Germany.

     e.  The applicant states, in effect, that he was court-martialed, assigned to work the national rifle matches, and did not receive any money for 90 days.  He also states that he became sick and depressed, left without permission again, and was sent to the stockade after he was apprehended.

     f.  The applicant states, while in the stockade, he was sent to see a lawyer and “was told that if I accepted a [sic] undesirable discharge I would be out of the army in about a week.”  He also states that the lawyer told him that the discharge would not hurt him, “it just meant that I was not Army material.”  The applicant further states that he believes he was taken advantage of because of his age and he “had no one to really explain all of this to [him].”

     g.  The applicant concludes by stating that he went to work after he was discharged, was married in 1980, has raised a family, and has done very well since then.  He acknowledges he made a lot of mistakes when he was young, adds that he was hurt and depressed at the time, and has been “ashamed every day since all this happened.”  He also states that he regrets his actions, is not seeking any kind of benefits, and only wants his discharge upgraded.

3.  The applicant provides a self-authored statement, dated 18 April 2008; his
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 22 January 1971; and 4 letters written by Linda S. F_____, Heather S_______, Beverly S______, and Cathy T_____, all undated.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant's military service records contain a DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated 30 July 1968.  This document shows, in pertinent part, the applicant’s date of birth is 10 January 1951 and that his grandmother (Anna D_____) and grandfather (Paul D_____) consented to the applicant’s enlistment in the Regular Army for a period of 3 years.

3.  The applicant's military service records show that he enlisted in the Regular Army and entered active duty for a period of 3 years on 16 August 1968.  The applicant’s records show his date of birth is 10 January 1951 and at the time of his entry on active duty the applicant was 17 years of age.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11D (Armor Reconnaissance Specialist).

4.  The applicant's military service records contain a copy of his DA Form 2476 (Applicant for Separation - Hardship or Dependency), dated 18 November 1968, with enclosures, that shows the applicant requested discharge in order to care for his grandparents.  On 30 December 1968, the applicant’s request for hardship discharge was disapproved because after a thorough investigation it was determined that the conditions described in the applicant’s request existed at the time of his entry on active duty, and they were not aggravated to the extent that discharge or release was warranted.  The documentation also shows that the applicant acknowledged with his signature that he had been informed of the decision made on his request for hardship discharge.

5.  The applicant's military service records contain a copy of Headquarters, Special Troops, Fort Jackson, South Carolina, Special Court-Martial Order Number 159, dated 1 April 1970.  This document shows the applicant was charged with violation of Article 86, Uniform Code of Military Justice (UCMJ),  with Specification 1 in that, on or about 14 August 1969, without authority, he did absent himself from his organization, to wit:  Headquarters and Headquarters Company, 1st Battalion, 30th Infantry (Germany), and did remain so absent until on or about 21 November 1969; Specification 2 in that, on or about 8 December 1969, without authority, he did absent himself from his organization, to wit:  Special Processing Detachment, U.S. Army Training Center, Infantry and Fort Jackson, Fort Jackson, South Carolina, and did remain so absent until on or about 7 January 1970; and Specification 3 in that, on or about 6 February 1970, without authority, he did absent himself from his organization, to wit:  Special Processing Detachment, U.S. Army Training Center, Infantry and Fort Jackson, Fort Jackson, South Carolina, and did remain so absent until on or about
15 February 1970.  The applicant entered a plea of not guilty to Specification
1 and pleas of guilty to Specifications 2 and 3.  A motion by defense for a finding of not guilty due to lack of evidence was granted with respect to Specification 1, and the applicant was found guilty of Specifications 2 and 3 and of the Charge.  His sentence was adjudged on 24 March 1970.  The applicant’s sentence was to be confined at hard labor for 30 days, to forfeit $50.00 per month for 4 months, and to be reduced to the grade of Private (E-1).  No previous convictions were considered.  On 1 April 1970, the convening authority approved the sentence ordering it be duly executed, but the execution of that portion thereof adjudging confinement at hard labor for 30 days was suspended for 30 days, at which time, unless the suspension was sooner vacated, the suspended portion of the sentence would be remitted without further action. 

6.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Garrison, Fort Jackson, South Carolina, Special Court-Martial Order Number 415, dated 26 August 1970, that shows, in pertinent part, the suspension of that portion of the sentence adjudging confinement at hard labor for 30 days was vacated and the unexecuted portion of the sentence to confinement at hard labor for 30 days was ordered duly executed.  This order also shows that the applicant was to be confined in the Post Stockade, Fort Jackson, South Carolina, and the sentence served therein or elsewhere as competent authority may direct.

7.  The applicant’s military service records contain a DA Form 20 (Enlisted Qualification Record), including a DA Form 20A (Insert Sheet to DA Form 2 - For Continuation of Items on Basic DA Form 20) and DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction).  Item 44 (Time Lost Under Section 972, Title 10, United States Code, and Subsequent to Normal Date ETS [Expiration Term of Service]) contains the entry, “Ref Item 45.”  Item 45 (Item Continuation) shows the applicant was absent without leave (AWOL) for
102 days from 11 August 1969 through 20 November 1969, confined (CONF) for
8 days from 21 November 1969 through 28 November 1969, AWOL for 35 days from 8 December 1969 through 11 January 1970, CONF for 24 days from
12 January 1970 through 4 February 1970, AWOL for 9 days from 6 February 1970 through 14 February 1970, CONF for 37 days from 15 February 1970 through 23 March 1970, AWOL for 38 days from 28 April 1970 through 29 July 1970, CONF for 27 days from 30 July 1970 through 25 August 1970, AWOL for 29 days from 26 August 1970 through 23 September 1970, dropped from rolls (DFR) for 88 days from 24 September 1970 through 20 December 1970, and CONF beginning 21 December 1970.

8.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 23 December 1970, that shows the major serving as Commander, Special Processing Detachment U.S. Army Training Center, Infantry and Fort Jackson, Fort Jackson, South Carolina, preferred charges against the applicant for violation of Article 86, UCMJ, with the specification that, on or about 28 April 1970, without authority, he did absent himself from his organization, to wit:  Headquarters and Headquarters Company, 5th Battalion, 31st Infantry,
197th Infantry Brigade, located at Fort Benning, Georgia, and did remain so absent until on or about 29 July 1970; and for violation of Article 95, UCMJ, with the specification that, having been lawfully placed in confinement in the Post Stockade, Fort Jackson, South Caroline, did, on or about 26 August 1970, at the Parolee Barracks, Fort Jackson, South Carolina, escape from such confinement while placed under the lawful charge of a noncommissioned officer.

9.  On 23 December 1970, the applicant requested a discharge for the good of the Service under the provisions of chapter 10 of Army Regulation 635-200.  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, or a discharge under other than honorable conditions, if the request is approved; of the effects of the request for discharge; and the procedures and rights available to the applicant.

10.  The applicant signed his request for discharge which showed that he was making the request under his own free will and had not been subjected to any coercion whatsoever by any person; that he was afforded the opportunity to consult with counsel; that he was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf, which would accompany his request for discharge; however, the applicant elected not to submit statements in his own behalf.

11.  On 31 December 1970, the major serving as Commander, Special Processing Detachment, U.S. Army Training Center, Fort Jackson, South Carolina, recommended approval of the applicant’s request for discharge from the Army, under the provisions of chapter 10 of Army Regulation 635-200.  The commander stated, “[a]fter careful review of [the applicant’s] records in conjunction with his negative attitude toward honorable service indicates that the best interests of the U.S. Army would be served with an approval of this request.” He also recommended the applicant be furnished an Undesirable Discharge Certificate.

12.  On 8 January 1971, the colonel serving as Commander, U.S. Army Garrison, Fort Jackson, South Carolina, recommended approval of the applicant’s request for discharge from the U.S. Army, under the provisions of chapter 10 of Army Regulation 635-200, with an Undesirable Discharge Certificate.  The colonel stated, “[a]fter careful consideration of available data, including one (1) previous conviction by Special Court-Martial and current offenses of one (1) specification of escape from confinement and one (1) specification of AWOL for a total of
92 days, after which [the applicant] was apprehended by civilian authorities, it appears approval of this request would be in the best interests of the Government and the [applicant].”

13.  On 13 January 1971, the major general serving as Commander, U.S. Army Training Center, Infantry and Fort Jackson, Fort Jackson, South Carolina, approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, Chapter 10, with a DD Form 258A (Undesirable Discharge Certificate).

14.  The applicant's military service records contain a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 22 January 1971, under conditions other than honorable, in accordance with the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service, with Separation Program Number (SPN) “246,” and issued a DD Form 258A (Undesirable Discharge Certificate).  This document also shows that at the time of his discharge the applicant had completed 1 year, 10 months, and 20 days net active service.

15.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

16.  The applicant’s military service records contain a copy of Headquarters, Department of the Army, Review Boards Agency, Support Division, St. Louis, Missouri, memorandum, dated 2 January 2002.  This document shows the applicant was informed that the Army Discharge Review Board (ADRB) is not the applicable Board to review his case, as the statutory period of appeals prohibits the ADRB from processing applications received after 15 years from the date of discharge or release from active duty.

17.  The applicant’s military service records contain a copy of Headquarters, Department of the Army, Board for Correction of Military Records, Arlington, Virginia, Memorandum of Consideration, Docket Number AR2002067909, dated 9 May 2002.  This document shows, in pertinent part, that the applicant’s request for correction of his records to show that he received a hardship discharge was denied by the Army Board for Correction of Military Records.


18.  In support of his application the applicant provides the followings documents.

     a.  A self-authored statement, dated 18 April 2008, and DD Form 214, with an effective date of 22 January 1971.  The self-authored statement was summarized in the applicant’s request and the DD Form 214 was previously introduced and considered as evidence in this Record of Proceedings.

     b.  A letter written by Linda S. F_____, the applicant’s wife, who states they have been married for 29 years; attests to the applicant being a good husband, father, and grandfather; and that he has always been a hard worker.  She also recounts the applicant’s childhood years and his military service.  Mrs. F_____ concludes by stating the applicant loves his country, is great with his family, and is a good Christian man who will do anything he can when someone needs help.

     c.  A letter written by Heather S_______, the applicant’s step-daughter, who states that the applicant has been her dad since she was 3 years old and that she now has 2 daughters of her own that the applicant helps her take care of. Ms. S_______ states the applicant is always trying to help others because he knows what it is like to be poor and he is a good Christian man.  She adds that, because of all he has done for her and others, the applicant’s discharge should be upgraded.

     d.  A letter written by Beverly S_____, the applicant’s mother-in-law, who states that the applicant is a good father, and grandfather; and that he has always been a hard worker and provided for his family.  She also states that her husband passed away in 1990, she depends on the applicant to help around her home, he has always done so, and he is a very giving person.  Ms. S______ acknowledges that the applicant made mistakes when he was young and adds that he deserves to have a happy and peaceful life.

     e.  A letter written by Cathy T_____, the applicant’s long-time friend, who states she has known the applicant since she was a teenage girl (she is now
59 years old).  Ms. T_____ states that the applicant is a good family man, works hard, and is active with the youth in their church.  She also states the applicant helped instill good values in her 3 sons because their father was not in their lives. Ms. T_____ states that the applicant’s wife told her that the applicant had become depressed because he was haunted by his discharge.  She also states that she is aware of his family circumstances at that time, the applicant was young, and he made a bad decision not really understanding what he was doing. Ms. T____ strongly asks for favorable consideration of the applicant’s request.


19.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

20.  Army Regulation 635-5-1 (Separation Program Numbers (SPN)) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  It identifies the SPN of “246” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service - in lieu of court-martial.

21.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

22.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

23.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge should be upgraded to an honorable discharge because he was a young Soldier at the time, he was taken advantage of because of his age, he had no one to really explain his discharge to him, he did not understand the severity of the discharge, and offers his post-service conduct in support of his request.

2.  Records show that the applicant was 18 years of age when he first went AWOL, 19 years of age during the time of his subsequent offenses of AWOL, and less than 1 month short of being 20 years of age when he submitted his request for discharge for the good of the Service.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service during this period.

3.  The evidence of record shows that the applicant was charged with committing an offense, the punishment for which included a bad conduct or dishonorable discharge, and that the applicant voluntarily acknowledged guilt to the offense charged.  The evidence of record also shows that the applicant's legal counsel advised him of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, or a discharge under other than honorable conditions, if the request is approved; of the effects of the request for discharge; and the procedures and rights available to the applicant.  The evidence of record further shows that the applicant signed his request for discharge which showed that he was making the request under his own free will and had not been subjected to any coercion whatsoever by any person; that he was afforded the opportunity to consult with counsel; that he was advised he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  Therefore, in view of all of the foregoing, the applicant provides insufficient evidence to support his claim that he was taken advantage of because of his age, that he had no one to explain his discharge to him, and/or that he did not understand the severity of the discharge.

4.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The evidence of record shows that charges were preferred against the applicant for violation of Article 86, UCMJ (i.e., being AWOL from 28 April 1970 through 29 July 1970) and for violation of Article 95, UCMJ (i.e., escaping from confinement while placed under the lawful charge of a noncommissioned officer). 
The evidence of record also shows the applicant had 199 days in an AWOL/DFR status and 96 days in confinement, for a total of 295 days (i.e., nearly 10 months) of time lost during the period of service under review.  In addition, records show that he completed less than 2 years of his 3-year enlistment.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  The comments of the applicant, his family members, and his long-time friend were carefully considered.  While the sincerity of the comments is not in question, the applicant’s good post-service conduct and community involvement alone is not so meritorious as to warrant an upgrade of his discharge.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X____  ___X_____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080008959



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ABCMR Record of Proceedings (cont)                                         AR20080008959



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